Political Scientists Tackle Sovereign Immunity!

Bureaucracy that Kills: Federal Sovereign Immunity and the Discretionary Function Exception

Weaver and Longoria, APSR June 2002

As promised, here is some thoughts on a great piece in the APSR. I’ve struggled to find non law review articles on sovereign immunity. For some reason, it seems like political scientists don’t give a lot of thought to sovereign immunity (at least in a domestic setting). Luckily there are a lot of good law review articles too. Specifically, I imagine it is a minority of people who are as excited as I have been to read Gregory Fisk’s “Litigation with the Federal Government”, a 632 page legal treatise on everything to do with suing and being sued by the government. I actually find it incredibly interesting.

But back to “Bureaucracy That Kills”. It’s really the only political science treatment of sovereign immunity I’ve come across. The article is great and treats sovereign immunity on a number of different levels. I think it is going to be a great model for what I want to write for my thesis.

They start out with a recounting of the story of the explosion of the Grandcamp in Texas City harbor, which killed 576 people. The aftermath is shown in the post’s main picture.

What happened in the Texas City Disaster was the nation’s worst industrial disaster in terms of casualties (576). A federally owned munitions factory had been making fertilizer destined for Europe under the Marshall plan. They somehow thought it prudent to put 1,850 tons of ammonia nitrate on a ship with a heavy load of explosives.

Anyways, as the authors explain, had the government been a regular corporation, they would have been liable to all kinds of lawsuits. But, the government enjoys sovereign immunity unless it waives it. All of this prefaces the bulk of the discussion on sovereign immunity (SI).

How did the authors examine SI?

Historically:

They give a nice history of the Federal Tort Claims Act as well as the history of how torts claims were dealt with previously, i.e. through Congressional private bills. There is also a brief enough discussion of the origins of the SI doctrine, but the Origins of Accountability paper I highlighted yesterday really covers that area. While this isn’t a historical piece, they do enough to give you some backdrop to the major themes in SI.

Substantively (Legal Cases):

They do a really great job of going through the major Supreme Court cases dealing with SI. For instance, Dalehite v. U.S., Berkovitz v U.S., U.S. v Gaubert, In re Atmospheric Testing, etc. all get pithy but detailed coverage. For the more important ones, they really go into detail and look at the actual events behind the lawsuits. Sometimes we get so caught up in legal doctrines etc, that we forget that really important issues

Theoretically (Political Theory):

I learned a lot about this idea of New Deal bureaucratic supremacy, or the idea that the courts should just let the executive do its job without second guessing it. The politics of bureuocracy part is interesting. Also in talking about the complexity of federal government dealings with citizens, the authors cite the

Substantively (Legislative)

There is of course discussion of the Federal Tort Claims Act. More specifically they discuss a little known provision called the “discretionary function exemption” (DFE). This is a caveat that allows for the government to retain immunity in areas where a government official had discretion to take or not take an action. But, if the law specifically mandates that a government official do a certain duty, there can be no discretionary function exception.

Substantively (Policy)

There is a good section near the end on policy implications of the SI doctrine. I think this might be the most important part for me going forward on my own thesis project. Especially in the discussion of constitutional implications and depriving the public of information. If a case is procedurally  dismissed before being heard on the merits, then the other side probably doesn’t get the opportunity to seek discovery from the government and therefore cannot get potentially embarrassing information on government error. I’m thinking now about the FOIA stuff I’ve been looking at (which I guess the Justice Department reconsidered it’s changes to FOIA).

Empirically!

I love the way they do the empirical component. It is exactly the type that I want to do. It doesn’t take over the article but it also isn’t just thrown in there. They look at the uses and success of the DFE argument in FTCA litigation (ahh! legal jargon!) But they did some quality empirical work that could be absorbed by most people. No overly complicated statistics, but still statistics worth showing.

Great article!!

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Posted on November 15, 2011, in Uncategorized and tagged , , , , , , , . Bookmark the permalink. Leave a comment.

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